After additional trips to Montgomery and Selma, I have been unable to discover how Joseph Noles got out of prison so quickly, but I did learn that his first two trials were documented in published, State-sponsored "Reports". Two volumes, 24 & 26, contained full, slightly revised transcripts, the legal arguments of both sides, and the opinions reached by Court Justices. Entries in these books, and Dallas County court dockets, indicate that George W. Gayle was his primary attorney. Thomas Williams was also noted-but William Murphy was not mentioned. Fortunately, I was able to find a copy of the Governor's proclamation in another paper. I still have several newspaper articles to copy, and, hopefully, one more trip to the Alabama Archives will clear remaining questions about the "case".

L. C. K.-November 4 1995

(Note: Only a few of the original photocopies have been replicated-below)

Item Notes

I) Title Page/Volume 26. Both books were compiled by State Reporter, J.W.

reason for overturning the first conviction was the invalidity of the peace war-rant. The ten items on the left page were his response to motions and other points of law. The other page "introduced" the transcription.

dering of Justice Chilton's opinion, regarding the warrant. They also point out, that his attention was called to it, "by the counsel for the "prisoner"-and that he was aware of the "technical ground upon which to reverse a cause of this grave importance".

M) Advertiser and State Gazette, March 2 1853-Montgomery,Alabama. The Governor's proclamation was evidently published twice, in two versions of

this paper. Printer notes(lower left)show:"Feb. 19, weekly, tri-weekly, 2 times". There was also a daily edition of this paper. Below the proclamation is a very colorful description! (Item M is the last one included from this list)

N) Navarro County Texas map, and approximate location of Midway Church

married J.C.McGilvery. It is unclear how "Claude" & "Edd" are related! Other tombstones show a connection to a Sims family. It appears likely that many descendants live nearby.(Navarro Co. Public Library-marriage records, compared with 1880 census records!).

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COURT REPORTS #1

THE TRIALS OF JOSEPH NOLES

[SUMMARY OF COURT "REPORTS"]

(See "OTHER ITEMS" for sources, and explanatory notes)

ITEM I(Title Page/Volume 26)

REPORTS

OF

CASES ARGUED AND DETERMINED

IN THE

SUPREME COURT OF ALABAMA

DURING

JANUARY TERM, 1855

BY J.W. SHEPHERD,

STATE REPORTER

VOL.XXVI

Montgomery

COWAN & MARTIN, PRINTERS

1855

__________________________________________________

ITEM J(pg.31)

NOLES vs. THE STATE

1. To excuse a homicide, there must exist on the part of the slayer an actual necessity to kill in order to prevent the commission of a felony or great bodily harm, or a reasonable belief in his mind that such necessity exists.

2. While every citizen has the right to resist any attempt to put an illegal restraint upon his liberty, his resistance must not be in enormous disproportion to the injury threatened. He has no right to kill, to prevent a mere trespass which is unaccom-panied by any imminent danger of great bodily harm or felony, and which does not produce in his mind a reasonable belief of such danger.

3. The charges of the court in this case, and its refusal to give the charges asked by the prisoner, tested by these principles, and held correct.

4. Any fact which tends to prove the real motive of the prisoner in killing the decea-sed, or the purpose of the deceased in going to the prisoner's house, or that the prisoner knew, at the time of the killing, that the deceased and his companions did not intend to commit any felony, nor to do him any great bodily harm, is relevant evidence.

__________________________________

ITEM J(pg.32)

NOLES vs. THE STATE

5. A verdict, finding the prisoner "guilty of murder in the first degree, and penitentiary for life", is sufficient to support a judgment of conviction and sentence of confinement in the penitentiary for life.

Error from the Circuit Court of Dallas.

Tried before the Hon. Nat. Cook.

Joseph Noles was indicted at the Spring term 1853, for the murder of one George T. Sharp; was tried, and convicted, and sentenced to be hung, but the judgment was reversed at the June term 1854, of the Supreme Court, and the cause remanded-See 24 Ala 672. A second trial was had at the Fall term 1854, which resulted in another conviction, from which this writ of error is prosecuted.

The bill of exceptions sets out all the evidence, which with such alterations as are necessary to make it intelligible in print, is as follows:

"James H. Burns, who was the first witness sworn, said he was an acting justice of the peace in the beat where the prisoner lived, at and before the time, and when the murder was charged to have been committed. Here an affidavit, made before Burns by the wife of the prisoner, and a warrant issued by Burns, were offered by the State, and objected to by the prisoner; which objection was sustained by the court, and both the affidavit and warrant excluded from the jury. The State then offered to prove the fact that the prisoner's wife had made an affidavit against him, and that this fact was communicated to the prisoner; which was objected to by the prisoner, but his objection was overruled, and he excepted. Burns then testified, that Mrs. Noles had made an affidavit before him; that he read the affidavit to the prisoner, who demanded an investigation; that he told the prisoner he had no constable or officer to arrest him, and that he would not try him unless he was regularly arrested, but, if he would surrender himself to someone, he(Burns)would appoint such person constable and investigate it; that Noles replied `he would see about it', and then left; that this was on the morning of the day Sharp was killed. The prisoner again objected to this evidence, and moved to exclude it; but the court overruled the objection, and the prisoner excepted. Burns also testified, that both Sharp and Noles were in the village of..............

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COURT REPORTS #2

THE TRIALS OF JOSEPH NOLES

[SUMMARY OF COURT "REPORTS"]

(See "OTHER ITEMS" for sources, and explanatory notes)

ITEM K(pg.672)

(Lines 1-4 omitted) NOLES vs. THE STATE

5. The caption of an indictment, showing when, where, and by whom the court was held, and who were elected and sworn as grand jurors, may be looked to, in aid of indictment, as part of the record.

6. A verdict finding the prisoner guilty of murder in the first degree, and sentencing him to be hung, is sufficient to authorize a judgment of conviction and sentence of death.

7. The date of the sentence and day of execution may be expressed in figures, instead of letters.

8. A justice of the peace has authority, in cases of emergency, to appoint a special constable(Code *712); and he must himself judge of such emergency.

9. A warrant issued by a justice of the peace, if it shows on its face that the justice had no authority to issue it, is no protection to the officer executing it, but he may be treated as a trespasser.

10. An affidavit by a married woman that "she is afraid her husband will beat, wound, maim, or kill her, or do her some bodily hurt" is not sufficient to authorize the arrest of the husband(Code * * 3340, 3341); and if the warrant of the justice appears on its face to be predicated on such an affidavit, it is void, and furnishes no protection to the officer executing it.

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ITEM K(pg.673)

NOLES vs. THE STATE

Error to the Circuit Court of Dallas.

Tried before Hon. Nat Cook.

Joseph Noles, the plaintiff in error, was indicted in the Circuit Court of Dallas, at its Spring term, 1853, for the murder of George Sharp. The indictment was in the form prescribed by the Code, on page 698. The prisoner demurred to the indictment, but his demurrer was overruled, and he then pleaded not guilty. The jury returned a verdict, saying, "they find the defendant guilty of murder in the first degree, and sentence him to be hung". The prisoner moved to set aside this verdict, but his motion was overruled; and he then moved in arrest of judgment, which motion was also overruled.

From the bill of exceptions, which was taken by the prisoner, it appears, that his wife made an affidavit before a justice of the peace, for the purpose of compelling him to keep the peace; that the said justice thereupon issued his warrant for the arrest of the prisoner, reciting thereon, as the predicate of its issue, that Mary Noles, wife of Joseph Noles, had made affidavit before him, "that she is afraid that her husband will beat, wound, maim, or kill her, or do her some bodily hurt, and has therefore prayed surety of the peace against him", and appointed the deceased a special constable to execute it; that the prisoner, before the appointment of the special constable, had gone to the office of the justice, and demanded an investigation of the charge, which the justice had declined, saying that he could not hear the cause until the prisoner was in custody; that the prisoner had not left the town when the special constable was appointed, but there was no proof whether or not he knew of the appointment; that soon after the prisoner started out of town, in the direction of his home, the deceased started after him, and overtook him in the edge of the village, where the prisoner was engaged in an altercation with one Perry. The evidence was conflicting as to what occurred at this interview, but there was no evidence that the deceased, at this time, said anything to Noles about the warrant. About two o'clock, on the afternoon of the same day, the deceased, in company with three others, went to the prisoner's house, for the purpose of arresting him under the warrant, which the deceased had in his possession; but no arrest was then effected. Late in the after-..................

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COURT REPORTS #3

THE TRIALS OF JOSEPH NOLES

[MORE COURT "REPORTS"/PROCLAMATION]

(See "OTHER ITEMS" for sources, and explanatory notes)

ITEM L(pg.696)

NOLES VS. THE STATE

passer, is fully discussed in Carrol v. The State, 23 Ala 28(?), and need not now be more particularly adverted to (here?).

Is the warrant in this case void upon its face? Does it show, upon its face, that the justice had no jurisdiction of the complaint, the substance of which the law requires should be stated in it?--Code*3341. Upon our first examination, we thought it was not void, but informal merely. Upon having our attention more particularly called to it, by the counsel for the prisoner, we are fully satisfied that our first impression was wrong, and that it is wholly void.

The Code (*3340)declares, that, "Whenever complaint is made to a magistrate, that any person has threatened or is about to commit an offence on the person or property of another, he must examine the complainant, and any witness he may produce, on oath, reduce such examination to writing, and cause it to be subscribed by the parties so examined." Section 3341 declares, "If, on such examination, it appears that there is reason to fear the commission of any such offence, by the person complained of, the magistrate must issue a warrant, directed to any lawful officer of the State, containing the substance of the complaint, and commanding such officer forthwith to arrest the person complained of, and bring him before him, or some other magistrate having jurisdiction in the matter."

The warrant in this case appears, upon its face, to be predicated upon the affidavit of Mary Noles, wife of the prisoner, which merely states that she "is afraid that her husband, Joseph Noles, of said county, laborer, will beat, wound, maim or kill her, or do her some bodily hurt." It sets forth no other cause of complaint, than in the recital of this oath, and proceeds "these are therefore to command you," & c.

This statute, being in restraint of liberty, and penal(?), must be strictly construed; that is, it may not be enlarged, by construction, beyond the plain import of the terms in which it is couched.

According to it, two cases only exist, where sureties for the peace may be demanded by the complaint of a party; one is, where any person "has threatened" to commit an offence on the person or property of another; the other, where such a person "is about to commit" such offence.

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ITEM L(pg.697)

NOLES VS. THE STATE

This warrant embraces neither, but merely that the prisoner's wife "is afraid" he will commit such offence. This is a substantive and distinct ground, not embraced by the statute; and for the obvious reason, that we should have but little security for personal liberty, if the mere fears of others, however groundless, could deprive us of it.

We are aware, that this looks like a technical ground upon which to reverse a cause of this grave importance ; but it is our duty to decide the law, irrespective of consequences; and being satisfied that the warrant is void, we have no alternative but to reverse the sentence, and remand the cause, that the prisoner may be again tried.

This judgment will be accordingly here rendered, and the prisoner will remain in custody to await his further trial.

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PROCLAMATION

ITEM MPROCLAMATION

Executive Department }

Montgomery, Alabama }

WHEREAS it has been made known to this Department that heretofore, to wit: on the 14th day of February; inst., JOSEPH NOALS did murder George T. Sharp in the county of Dallas, and that the said Joseph Noals has escaped from justice:

Now, therefore, I Henry W. Collier, Governor of the State of Alabama, by virtue of the power and authority in me vested by the Constitution and laws of the State, do hereby offer a reward of FOUR HUNDRED DOLLARS to any person or persons who will arrest the said Joseph Noals and deliver him to the Sheriff of Dallas county, to be tried for the offence with which he stands charged.

Given under my hand and the great seal of the State affixed, at Montgomery, this 18th day of February, A.D., 1853, and of American Independence the 77th year.

L.S.

By the Governor: H.W. COLLIER

V. M. Benham, Secretary of State

_______________________________

DESCRIPTION

The said Noals is about 45 years old, 6 feet high, black hair, dark skin, lean visage, swarthy appearance with a very bad countenance. When talking his under lip inclines to draw and his teeth shows.